The Hidden Sentence: Understanding the Rise of a Broader, Lesser Known Form of Penal Control in the United StatesPublic Deposited
In recent decades, scholars and activists have written extensively on the immense growth of America’s penal system, its origins in fear-based, racially coded politics and neoliberal reformations, its distressingly ineffective and unjust outcomes, and its central place as a social institution in the contemporary United States. Yet this dominant discourse almost exclusively privileges imprisonment while overlooking less visible penal practices—especially those that this project names “hidden sentences.” “Hidden sentences” are all punishments imposed by law as a direct result of criminalization, but not as part of a formal, judge-issued sentence. When the discourse does recognize hidden sentences, it is ubiquitously in the frame of “collateral consequences” of convictions and of mass incarceration itself—approaching those legal punishments as “inadvertent” side-effects of judicial sentencing that all “naturally” appeared within legal codes after the War on Drugs began. There are, however, about 45,000 hidden sentence provisions across U.S. jurisdictions that policymakers have purposively enacted into law. They apply to about 1 in 3 American adults, they can apply well before conviction or even indictment, and they last for far longer than do formal sentences. Yet, this expansive arm of the penal system, its true historical origins, and its deep, institutionalized functions in the contemporary United States remain hidden. The goal of this study is therefore to delve into the inner workings and historical origins of hidden sentence law in order to better come to terms with the hidden aspects of punishment as a social institution in the contemporary United States. Through more than one hundred case studies combined with national-level statistics, this project will (a) deconstruct assumptions that hidden sentences are secondary side-effects of contemporary changes in the penal system, and (b) construct a more critical, historical perspective of what role hidden sentences have played in American history in order to inform our current knowledge about what punishment actually is and does. Archived legislative, judicial, and media histories from California and the federal system will trace the development of key hidden sentences since long before the War on Drugs officially began to identify policymakers’ goals, the assumptions and paradigms they used, and the key contextual factors that informed their actions in creating hidden sentence laws. Additionally, a unique dataset of all state and federal hidden sentences policies today provides further evidence of political, economic, and social conditions underlying such decisions. The results show that the hidden penal system is a particularly modern iteration—in a Weberian sense—of a millennia-old practice of labeling and excluding criminals that was transformed through the abstract, color-blind and status-blind frame of modernist rationality into projects of racialization, essentialization, and criminalization. Hidden sentences developed between the mid-1800s and early 1900s as formalized, bureaucratized kinds of classification technologies steeped in the (elite, typically Anglo-Saxon) logics of achieving policy goals through means that are, above all else, objective, calculable, standardizable, and efficient. By focusing on their policy goals and only looking for means that intuitively fit that rationalist model, policymakers systematically created hidden sentences without anticipating or analyzing their penal-criminal character, their predictable consequences on criminalized people, and their basis in shared assumptions about race, political identity, and other essentialized forms of identity. In the end, this project shows that the hidden penal system has functioned for more than a century to reify cultural stereotypes of racialized and essentialized others in the law, distribute those biases throughout society through repeated rituals of inclusion and exclusion, and continually reconstruct lines of privilege and marginalization around criminalized identities. The hidden sentence in the United States has long been an unrecognized tool of legally demarcating and naturalizing forms of belongingness.